FBI Director Comey Got it Wrong

“Yes officer, I know I was going 80 miles per hour but I did not intend to violate the law.”

TJH (circa 2016)

On last Thursday, the Director of the Federal Bureau of Investigation, James Comey, delivered up a whitewash of the latest Hillary Clinton scandal – the use of an unsecured private server and email account to transact State Department business including the sending and receiving of classified documents accompanied by the destruction of records properly belonging to the State Department. While Mr. Comey provided direct and damning testimony about Ms. Clinton’s conduct, including a litany of the lies told by Ms. Clinton to the public and to the United States Congress – the latter being under oath – he swept it all under the rug by claiming that Ms. Clinton was merely careless and not criminally liable.

However, in the entirety of Mr. Comey’s statement and his Congressional testimony that followed, he failed to deal with the singular question upon which, in perspective, Ms. Clinton’s conduct cannot be adjudged anything other than criminal. Why did Ms. Clinton create a private email account and server which was housed outside of State Department facilities on which she intended to and did conduct nearly four years of State Department business?

Mens rea – criminal intent – can be proven by the admission of the accused to the court or others. Given that most criminals, including high-ranking public officials, are loath to admit their guilt or testify against themselves, criminal intent can also be proven by circumstantial evidence, including inference from the act itself. In other words if you are going eighty miles per hour and you know you are going eighty miles per hours, it can be inferred that you intended to violate the law limiting the speed to seventy miles per hour.

Of course there could be alternative explanations as to why you were apparently violating the law. If you were going eighty miles per hour as a result of an emergency (illness, injury, etc.) then you, in fact, did not intend to violate the law. However, the emergency or any other excusable rationale must, in fact, exist and exist in proximity to the event. If you were going eighty miles an hour because your spouse was about to deliver, that could be excusable; however, if you were going eighty miles per hour to visit your spouse in the hospital who delivered eight hours previously, that would not be excusable. If you were going eighty miles per hour because of equipment failure that might be excusable; however, if subsequent testing cannot discover or duplicate the equipment failure, that would not be excusable.

So what of Ms. Clinton’s excuses for using a private email account and server housed on her property? Well, only one has been offered – that it was done for convenience – so that she did not have to have multiple devices to differentiate between personal and government business. As a practiced liar, Ms. Clinton made this rationale appear plausible. However, even a practiced liar must yield to the truth. And the truth is that photographic evidence taken during Ms. Clinton’s tenure at the State Department demonstrated that she continued to use multiple devices constantly. More importantly – and frankly one of the dangers for liars – Ms. Clinton could not remember to whom she told which lie. In an effort to prove herself cool and tech savvy, Ms. Clinton bragged about the fact that she used multiple devices during her tenure – she had computers, tablets, I-phones, and even a Blackberry. By her own acts and admissions, Ms. Clinton demonstrated that the “convenience” excuse was neither real nor proximate.

So what other excuse might there be? With none other being offered or suggested (how could there be) we are left to deal with the truth. As L. Gordon Crovitz noted in yesterday’s edition of the Wall Street Journal:

“Lyndon Johnson did his best to block the Freedom of Information Act, but public opinion forced him to make government records available. The question now is how FOIA, which LBJ signed 50 years ago this month, survives the precedent Hillary Clinton set with her basement server intended to keep her emails hidden from public view.”

After suffering previous embarrassments based on emails and other public records mandated by state and federal laws, Ms. Clinton was bound and determined to avoid new disclosures. (Wouldn’t you if, while you were Secretary of State, various wealthy individuals and nations were plying your spouse and your charity with hundreds of millions of dollars while State Department approval of actions and/or projects were pending?) By using a private email account and placing a private server on her property – outside the domain of the State Department – Ms. Clinton minimized the scrutiny of her correspondence by government watchdogs, including Congress, and private parties seeking information under the Freedom of Information Act (FOIA). By subsequently deleting emails and scrubbing the private server, Ms. Clinton increased the likelihood that damaging information would never see the light of day. Mr. Crovitz’s article cited language from a recent federal appeals court decision regarding Ms. Clinton’s illegal efforts:

“If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served,” the judges wrote. “It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

That then is precisely the only reason for Ms. Clinton’s use of the private email account and server – to avoid public scrutiny of her acts during her tenure as Secretary of State. That is, in itself, a violation of law. It is contrary to Mr. Comey’s suggestion that Ms. Clinton was merely negligent. It was intentional, it was designed to withhold public scrutiny, and it was to shield her actions, including any illegal actions involving Ms. Clinton, former President Bill Clinton (D) and her charitable foundation, from disclosure. While Ms. Clinton and her husband were amassing a $150 Million dollar fortune during her tenure as Secretary of State, without providing any legitimate product or service, the public was, by her actions made ignorant of her actual conduct. And it is not the first time – not even the second or third time. It is a pattern of conduct in which Ms. Clinton has been engaged for over four decades beginning with the deliberate sequestration of evidence during the Watergate investigation – an act for which she was fired from the Watergate staff.

Ms. Clinton has repeatedly stated that only emails involving personal matters (wedding details for her daughter and yoga classes) were deleted. We know that this too was a lie based on release of emails between Ms. Clinton and Sydney Blumenthal (as a private citizen) involving Libya and the events surrounding the terrorist attack on our embassy in Benghazi. There were also emails from Ms. Clinton to her daughter Chelsea acknowledging that the Benghazi attacks was a terrorist attack – while Chelsea may be her daughter, she did not have a need to know and, therefore, the information was not personal but State Department business. What we don’t know is the contents of the other 30,000 emails that Ms. Clinton deleted in violation of law.

In the end, Ms. Clinton’s intent to circumvent the public record laws is the foundation for implying criminal intent. Mens rea is demonstrable, and virtually any court would allow its admission.

Mr. Comey could have recommended a criminal referral but instead he chose to sweep yet another Clinton scandal under the rug. And the weak-kneed Republicans who praised Mr. Comey’s “integrity” in hopes of having someone else do the hard work, are left holding the bag. And while they sputter and fume, demanding yet another investigation, the reality is that no such investigation is going to occur – or at least occur on a timely basis – and Ms. Clinton is well on her way to being elected President of the United States. That is unless the private lawsuits involving Ms. Clinton’s withholding of documents and deliberate lies bears additional fruit to demonstrate the proximity of State Department approvals with payments by nations and wealthy individuals to Mr. Clinton and/or the Clinton Foundation.

Or, unless the voters are so disgusted with the rampant corruption that is Washington and is epitomized by the Clintons that they throw the whole bunch (including the leadership of Congress) out at the next election.